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Tuesday, March 5, 2013

America’s Holy Writ

Oct 17, 2010 9:00 AM EDT

Tea Party evangelists claim the Constitution as their sacred text. Why that’s wrong.

Tea Partiers hold up the Constitution on Tax Day in Washington. (Win McNamee / Getty Images)

Since winning the Republican senate primary in Delaware last month, Christine O’Donnell has not had trouble getting noticed. When the Tea Party icon admitted to “dabbl[ing] into witchcraft” as a youngster, the press went wild. When she revealed that she was “not a witch” after all, the response was rabid. O’Donnell has fudged her academic credentials,
defaulted on her mortgage, sued a former employer, and campaigned
against masturbation, and her efforts have been rewarded with
round-the-clock coverage. Yet few observers seem to have given her views
on the United States Constitution the same level of consideration.
Which is too bad, because O’Donnell’s Tea Party take on our founding
text is as unusual as her stance on autoeroticism. Except that it could
actually have consequences.

Inside the Tea Party (Win McNamee / Getty Images)

Last
month, the candidate spoke to 2,000 right-wing activists at the annual
Values Voter Summit in Washington, D.C. She wore a black suit and
pearls, and swept on stage to the sound of Journey’s “Don’t Stop
Believin’.” Most of the speech was unremarkable: a laundry list of
conservative platitudes. But near the end she veered into stranger—and
more revealing—territory. O’Donnell once told voters that her “No. 1”
qualification for the Senate is an eight-day course she took at a
conservative think tank in 2002. Now she was revisiting its subject: the
Constitution.

The
Founders’ masterpiece, O’Donnell said, isn’t just a legal document;
it’s a “covenant” based on “divine principles.” For decades, she
continued, the agents of “anti-Americanism” who dominate “the D.C.
cocktail crowd” have disrespected the hallowed document. But now,
finally, in the “darker days” of the Obama administration, “the
Constitution is making a comeback.” Like the “chosen people of Israel,”
who “cycle[d] through periods of blessing and suffering,” the Tea Party
has rediscovered America’s version of “the Hebrew Scriptures” and led
the country into “a season of constitutional repentance.” Going forward,
O’Donnell declared, Republicans must champion the “American values”
enshrined in our sacred text. “There are more of us than there are of
them,” she concluded.

By
now, O’Donnell’s rhetoric should sound familiar. In part that’s because
her fellow Tea Party patriots—Glenn Beck, Sarah Palin, the guy at the
rally in the tricorn hat—also refer to the Constitution as if it were a
holy instruction manual that was lost, but now, thanks to them, is
found. And yet the reverberations go further back than Beck. The last
time America elected a new Democratic president, in 1992, the Republican
Party’s then-dominant insurgent group used identical language to
describe the altogether different document that defined their cause and
divided them from the heretics in charge: the Bible. The echoes of the
religious right in O’Donnell’s speech—the Christian framework, the
resurrection narrative, the “us vs. them” motif, the fixation on
“values”—aren’t coincidental.

From
a legal perspective, there’s a case to be made that O’Donnell’s
argument is inaccurate. The Constitution is a relentlessly secular
document that never once mentions God or Jesus. And nothing in recent
jurisprudence suggests that the past few decades of governing have been
any less constitutional than the decades that preceded them. But the Tea
Party’s language isn’t legal, and neither is its logic. It’s moral:
right vs. wrong. What O’Donnell & Co. are really talking about is
culture war.

When
Barack Obama took office, experts rushed to declare an end to the old
battles over race, religion, and reproductive rights—whether because of
Obama’s alleged healing powers, or the Great Recession, or both. But
these analyses ignored an important reality: at heart, the culture wars
were really never about anything as specific as abortion or gay
marriage. Instead, as James Davison Hunter wrote in Culture Wars,
the book that popularized the term, the conflicts of the 1990s
represented something bigger: “a struggle over…who we have been...who we
are now, and...who we, as a nation, will aspire” to be. Such conflicts,
Hunter explained, pit “orthodox” Americans, who like the way things
were, against their more “progressive” peers, who are comfortable with
the way things are becoming.

For
the forces of orthodoxy, the election of a black, urban, liberal
Democrat with a Muslim name wasn’t a panacea at all; it was a
provocation. So when the recession hit, and new economic anxieties
displaced the lingering social concerns of the Clinton era, political
fundamentalists sought refuge in a more relevant scripture—one that
could still be made to accommodate the simpler, surer past they longed
for but happened to dwell on taxes and government instead of sinning and
being saved.

The
Constitution was waiting. Today, Tea Party activists gather to recite
the entire document to each other. They demand that a wayward America
return to its Constitutional roots. They even travel to Colonial
Williamsburg and ask the actor playing George Washington how to topple a
tyrannical government. In short, they take their Constitution worship
very, very seriously. The question now is whether the rest of us should
as well.

Contemporary
Constitution worshipers claim that they’ve distilled their entire
political platform—lower taxes, less regulation, minimal federal
government—directly from the original text of the founding document. Any
overlap with mainstream conservatism is incidental, they say; they’re
simply following the Framers’ precise instructions. If this were true,
it would be quite the political coup: oppose us, the Tea Party could
claim, and you’re opposing James Madison. But the reality is that Tea
Partiers engage with the Constitution in such a selective manner, and
for such nakedly political purposes, that they’re clearly relying on it
more as an instrument of self-affirmation and cultural division than a
source of policy inspiration.

In
legal circles, constitutional fundamentalism is nothing new. For
decades, scholars and judges have debated how the founding document
should factor into contemporary legal proceedings. Some experts believe
in a so-called living Constitution—a set of principles that, while
admirable and enduring, must be interpreted in light of present-day
social developments in order to be properly upheld. Others adhere to
originalism, which is the idea that the ratifiers’ original meaning is
fixed, knowable, and clearly articulated in the text of the Constitution
itself.

While
conservatives generally prefer the second approach, many disagree over
how it should be implemented—including the Supreme Court’s most
committed originalists, Antonin Scalia and Clarence Thomas. Thomas
sympathizes with a radical version of originalism known as the
Constitution in Exile. In his view, the Supreme Court of the 1930s
unwisely discarded the 19th-century’s strict judicial limits on Federal
power, and the only way to resurrect the “original” Constitution—and
regain our unalienable rights—is by rolling back the welfare state,
repealing regulations, and perhaps even putting an end to progressive
taxation. In contrast, Scalia is willing to respect precedent—even
though it sometimes departs from his understanding of the Constitution’s
original meaning. His caution reflects a simple reality: that upending
post-1937 case law and reversing settled principles would prove
extremely disruptive, both in the courts and society at large. As Cass
Sunstein, a centrist legal scholar at the University of Chicago who now
serves in the Obama administration, has explained, “many decisions of
the Federal Communications Commission, the Environmental Protection
Agency, the Occupational Safety and Health Administration, and possibly
the National Labor Relations Board would be [ruled] unconstitutional” if
Thomas got his way. Social Security could be eliminated. Same goes for
the Securities and Exchange Commission and the Federal Reserve.
Individual states might be allowed to establish official religions. Even
minimum-wage and maximum-hour laws would be jeopardized.

Tea
Partiers tend to sound more like Thomas than Scalia. Every weekday on
Fox News, Glenn Beck—“the most highly regarded individual among Tea
Party supporters,” according to a recent poll—takes to his schoolroom
chalkboard to rail against progressives like Woodrow Wilson and Franklin
D. Roosevelt. “They knew they had to separate us from our history,” he
says, “to be able to separate us from our Constitution and God.” In
Beck’s view, progressives forsook the faithful Christian Founders and
forced the country to adopt a slew of unconstitutional measures that
triggered our long decline into Obama-era totalitarianism: the Federal
Reserve System, Social Security, the graduated federal income tax. True
patriots, according to Beck, favor a pre-progressive vision of the
United States. When Nevada Senate nominee Sharron Angle says we need to
“phase out” Social Security and Medicare; when Alaska Senate nominee Joe
Miller asserts that unemployment benefits are “unconstitutional”; when
West Virginia Senate nominee John Raese declares that the minimum wage
should “absolutely” be abolished; when Kentucky Senate nominee Rand Paul
questions the legality of the Civil Rights Act of 1964; when Minnesota
Rep. Michele Bachmann claims that Obama’s new health-insurance law
violates the Constitution; and when various Tea Party candidates say
they want to repeal the amendments that triggered the federal income tax
and the direct election of senators—this is the vision they’re
promoting. At times, the Tea Party can seem like a popularized,
politicized offshoot of the Constitution in Exile movement.

Over
the years critics have lodged dozens of objections to originalism—the
disagreements among the Founders; the preservation of slavery in the
final product; the inclusion of an amendment process—and they apply to
the Tea Party’s interpretation of the Constitution, too. But at least
originalism is a rational, consistent philosophy. The real problem with
the Tea Party’s brand of Constitution worship isn’t that it’s too
dogmatic. It’s that it isn’t dogmatic enough. In recent months, Tea
Party candidates have behaved in ways that belie their public commitment
to combating progressivism. They’ve backed measures that blatantly
contradict their originalist mission. And they’ve frequently
misunderstood or misrepresented the Constitution itself. In May, for
example, Paul told a Russian television station that America “should
stop” automatically granting citizenship to the native-born children of
illegal immigrants. Turns out his suggestion would be unconstitutional,
at least according to the 14th Amendment (1868) and a pair of subsequent
Supreme Court decisions. A few weeks later, Paul said he’d like to
prevent federal contractors from lobbying Congress—a likely violation of
their First Amendment right to redress. In July, Alaska’s Miller told
ABC News that unemployment benefits are not “constitutionally
authorized.” Reports later revealed that his wife claimed unemployment
in 2002.

The
list goes on. Most Tea Partiers claim that the 10th Amendment, which
says “the powers not delegated” to the federal government are “reserved
to the states,” is proof that the Framers would’ve balked at today’s
bureaucracy. What they don’t mention is that James Madison refused a
motion to add the word “expressly” before “delegated” because “there
must necessarily be admitted powers by implication.” In last week’s
Delaware Senate debate, O’Donnell was asked to name a recent Supreme
Court case she disagreed with. “Oh, gosh,” she stammered, unable to cite
a single piece of evidence to support her Constitution in Exile talking
points. “I know that there are a lot, but, uh, I’ll put it up on my Web
site, I promise you.” Angle has said that “government isn’t what our
Founding Fathers put into the Constitution”—even though establishing a
federal government with the “Power To lay and collect Taxes” to “provide
for the common Defence and general Welfare” is one of the main reasons
the Founders created a Constitution to replace the weak, decentralized
Articles of Confederation. In 2008 Palin told Katie Couric that the
Constitution does, in fact, guarantee “an inherent right to privacy,” à
la Roe v. Wade, but added that “individual states…can handle an
issue like that.” Unfortunately, Palin’s hypothesis would only be viable
in a world without the Fourteenth Amendment, which gave Washington sole
responsibility for safeguarding all constitutional rights. Then there
are the proposed amendments. In the current Congress, conservatives like
Michele Bachmann have suggested more than 40 additions to the
Constitution: a flag-desecration amendment; a balanced-budget amendment;
a “parental rights” amendment; a supermajority-to-raise-taxes
amendment; anti-abortion amendment; an anti-gay-marriage amendment; and
so on. None of these revisions has anything to do with the document’s
original meaning.

The
truth is that for all their talk of purity, politicians like Palin,
Angle, and Miller don’t seem to be particularly concerned with matching
their actual positions to the Constitution they profess to worship. For
them, the sacred text serves a higher purpose—and in the end, that
purpose isn’t hard to pinpoint.

Since
the earliest days of the republic, Americans have, like the Tea
Partiers, spoken of the Constitution in religious terms. In 1792,
Madison wrote that “common reverence…should guarantee, with a holy zeal,
these political scriptures from every attempt to add to or diminish
from them.” George Washington’s Farewell Address included a plea that
the Constitution “be sacredly maintained.” In his Lyceum speech of 1838,
Abraham Lincoln cited the document as the source of “the political
religion of the nation” and demanded that its laws be “religiously
observed.” In 1968, Supreme Court Justice Hugo Black called the
Constitution his “legal bible,” and a few years later, during Richard
Nixon’s impeachment hearings, Texas Rep. Barbara Jordan testified that
her “faith in the Constitution is whole.” But the similarity between
these figures and the Tea Partiers ends at the level of language. For
leaders like Lincoln and Jordan, the Constitution is a symbol “that
suppl[ies] an overarching sense of unity even in a society otherwise
riddled with conflict,” as sociologist Robin Williams once wrote. It is
an integrative force—the cornerstone of our civil religion.

The
Tea Partiers belong to a different tradition—a tradition of divisive
fundamentalism. Like other fundamentalists, they seek refuge from the
complexity and confusion of modern life in the comforting embrace of an
authoritarian scripture and the imagined past it supposedly represents.
Like other fundamentalists, they see in their good book only what they
want to see: confirmation of their preexisting beliefs. Like other
fundamentalists, they don’t sweat the details, and they ignore all
ambiguities. And like other fundamentalists, they make enemies or
evildoers of those who disagree with their doctrine. In the 1930s, the
American Liberty League opposed FDR’s New Deal by flogging its version
of the Constitution with what historian Frederick Rudolph once described
as “a worshipful intensity.” In the 1960s, the John Birch Society
imagined a vast communist conspiracy in similar terms. In 1992
conservative activists formed what came to be known as the Constitution
Party—Sharron Angle was once a member—in order to “restore American
jurisprudence to its Biblical foundations and to limit the federal
government to its Constitutional boundaries.” Today, Angle asserts that
“separation of church and state is an unconstitutional doctrine,” and
Palin claims that “the Constitution…essentially acknowledg[es] that our
unalienable rights…come from God.” The point is always the same: to
suggest that the Constitution, like the Bible, decrees what’s right and
wrong (rather than what’s legal and illegal), and to insist that only
the fundamentalists and their ilk can access its truths. We are moral,
you are not; we represent America, you do not. Theirs is the rallying
cry of culture war.

The
Tea Partiers are right to revere the Constitution. It’s a remarkable,
even miraculous document. But there are many Constitutions: the
Constitution of 1789, of 1864, of 1925, of 1936, of 1970, of today.
Where O’Donnell & Co. go wrong is in insisting that their idealized
document is the country’s one true Constitution, and that dissenters are
somehow un-American. By putting the Constitution front and center, the
Tea Party has reinvigorated a long-simmering argument over who we are
and who we want to be. That’s great. But to truly honor the Founders’
spirit, they have to make room for actual debate. As usual, Thomas
Jefferson put it best. In a letter to a friend in 1816, he mocked “men
[who] look at constitutions with sanctimonious reverence, and deem them
like the arc of the covenant, too sacred to be touched”; “who ascribe to
the men of the preceding age a wisdom more than human, and suppose what
they did to be beyond amendment.” “Let us follow no such examples, nor
weakly believe that one generation is not as capable as another of
taking care of itself, and of ordering its own affairs,” he concluded.
“Each generation is as independent as the one preceding, as that was of
all which had gone before.” Amen.